Find a Lawyer

Civil Revision No.703 of 1978, decided on 13th April, 1983.

---O.XVII, R.1--List of witnesses, filing of--Trial Court directing plaintiff to examine petition writer and to close his evidence on a fixed date--Plaintiff moving application to summon another witness, through Court--Application was allowed and plaintiff directed to file list of witnesses to be summoned--Petitioner/defendant contending that order of Trial Court was without jurisdiction since no reasons were given for allowing to file list of witnesses for summoning through Court agency after expiry of seven days--Held, it could not be said that Court had no authority to allow the filling of application after expiry of seven days--Inherent powers of Court are very much there to pass any appropriate order--Court, should however, examine whether there was sufficient cause to allow a party to file list of witnesses and summon .them through Court after expiry of seven days--When time was fixed with directions that no witness except petition writer would appear and the evidence would be closed by the plaintiff, Court as such acted with material irregularity--Case was remanded for disposal of application of summoning of witnesses in accordance with law.

P L D 1979 Lah. 260 ref.

Ch.Imtiaz Ahmad for Petitioner.

Sh.Farooq Ahmad for Respondents.

Date of hearing: 13th April, 1983.

This Civil Revision arises from order dated 30-3-1978 whereby the learned Civil Judge 1st Class Khanewal allowed the application filed by Ghulam Hussain and others respondents 1 to 3 for summoning Muhammad Jaffar an attesting witness of the agreement to sell, through the agency of the Court.

2. The facts leading up to this revision in brief are that on 19-1-1974 Ghulam Hussain and others filed a suit for specific performance of agreement to sell the agricultural land against the present petitioners and Kamal Din, respondent No.4. On 3-2-1975 the issues were framed and the case was adjourned for recording of evidence of the plaintiff. The first witness produced by the plaintiff was, however, examined on 31-1-1977. On that date Abdur Rashid, petition writer of the sale deed was present but since the record was not with him therefore, he was bound down for 16-5-1977. In this order the trial Court mentioned that no other witness will be examined except Abdur Rashid, petition writer and that the plaintiffs will close their evidence on that date. On 31-7-1977 the plaintiffs-respondents moved application Annex. "B" to summon Muhammad Jaffar as witness through agency of the Court. After hearing the parties this application was accepted and the plaintiffs were allowed to file list of the witnesses who shall be summoned as prayed for. Hence this revision.

3. Learned counsel submits that the learned trial Court had no jurisdiction at all to allow the application and in any case since no reasons have been given for allowing the plaintiffs-respondents to file list of the witnesses and to summon them through agency of the Court therefore the order has been passed without material regularity. Reliance has been placed on a case reported as H . M . Sadiq and Co. v. Volkart Ltd. P L D 1979 Lahore 260.

4. As against this Sh.Farooq Ahmad the learned counsel for the respondent has vehemently defended the impugned order on the ground that the trial Court had inherent jurisdiction to summon the witnesses through the agency of the Court and also to allow the plaintiffs respondents to file list of the witnesses after the expiry of the statutory time.

5. After hearing the learned counsel for the parties I find that there is no doubt, that there is no specific provision empowering the Court to allow filing of list of the witnesses beyond seven days but at the same time it cannot be said that the Court in the peculiar circumstances has no authority to allow the filing of the application after expiry of seven days. Needless to add that when there is no specific provision barring the filing of the list of the witnesses beyond seven days the inherent powers of the Courts are very much there to pass any appropriate order. I have not been able to persuade myself to agree with the contention raised by the learned counsel for the petitioners that the trial Court had no Jurisdiction at all to allow filing of the list of the witnesses or to permit for summoning the witnesses. As for the second contention I am inclined to agree with the learned counsel for the petitioners that it was mandatory for them learned trial Court to give reasons for permitting the respondents to' file list of the witnesses after seven days. To my mind the learned Court should have examined whether there was sufficient cause to' allow a party to file list of the witnesses and summon them through' process of the Court particularly when on 31-1-1977 it had in so many, words observed that no witness except Abdur Rashid would appear, and that the plaintiffs-respondents will close their evidence on ', 16-5-1977. I am convinced that since the trial Court has not given any reasons for condoning the delay in filing the application to summon' Muhammad Jaffar and for accepting the oral request made by the plaintiffs-respondents for permission to file list of the witnesses, it' has acted with material irregularity. The order is, therefore set' aside.

6. The upshot of the above discussion is that the impugned order dated 30-3-1978 is hereby set aside. The matter is remanded back to the trial Court with a direction that it shall consider the application in accordance with law and decide it within one month positively.

7. The office shall send back the record of the case to the Civil Judge 1st Class, Khanewal, within seven days.

S. A./3041/L Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.